People v. Yeager CA5

Filed 2/20/14 P. v. Yeager CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F066776 Plaintiff and Respondent, (Super. Ct. No. VCF275269C) v.

RANDY LEE YEAGER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge. (Retired judge of the superior court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P.J., Peña, J. and Hoff, J.† † Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

On November 7, 2012, the Tulare County District Attorney charged defendant Randy Lee Yeager with two counts of second degree robbery (Pen. Code, § 211;1 counts 1 & 2). The complaint further alleged that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served seven prior prison terms (§ 667.5, subd. (b)). The trial court gave an indicated sentence of 15 years and defendant pled no contest. The probation report also recommended a 15-year total term, based on consecutive terms, but on one occasion described the terms as concurrent. At sentencing, the court’s oral pronouncement imposed concurrent terms without mentioning the total term. The minute order and abstract of judgment both reflect consecutive terms and a 15-year total term. On appeal, defendant contends we should remand for correction of those two records to conform to the court’s oral pronouncement of sentence, which amounted to a 13-year total term. We disagree and will remand for resentencing. FACTUAL BACKGROUND I. The Crimes Ben and Ellis, the victims, were playing pool at a bar, where they had a disagreement with Barton Lee and Ray Vance regarding whose turn it was to use the pool table. To resolve the conflict, Ben, Barton, and Ray agreed to play together, and Ellis began playing with a young woman. When the woman left, Ellis followed her out of the bar to get her telephone number. He met Barton, who said, “Back the fuck off, or you’re going to get hurt.” But Ellis continued walking the woman to her car. When Ben came out to find Ellis, he was stopped by Barton, Ray, and defendant. They told him, “We’re going to kick your friend’s ass.”